Right to Die with Dignity: Euthanasia- Law and Case Laws

In March this year, the Supreme Court in a landmark
judgement passed in the case Common Cause (A Regd. Society) v. Union of
India, recognized right to die
with dignity as a fundamental right. The Bench has hence recognized the
concepts of passive euthanasia and living will in India.

What is passive euthanasia– In literal
sense passive euthanasia means withholding treatment or supportive measures
which would have otherwise saved the patient’s life. On the other hand active
euthanasia means to introduce something to cause death.

What is a living will– It refers to the principle where a patient’s consent has been expressed at an earlier date before he became unconscious or otherwise incapable of communicating it as by a `living will’ or by giving written authority to doctors in anticipation of his incompetent situation.

An essential remark made by the Bench expressing it’s
concern over permitting euthanasia was that the
legal question does not singularly remain in the set
framework of law or, for that matter, morality or dilemma of the doctors but
also encapsulates social values and the family mindset to make a resolute
decision which ultimately is a cause of concern for all.

A very intriguing concern had been raised
by the Petitioner in the case, whereby it averred that due to the advancement
of modern medical technology pertaining to medical science and respiration, a
situation has been created where the dying process of the patient is
unnecessarily prolonged causing distress and agony to the patient as well as to
the near and dear ones and, consequently, the patient is in a persistent
vegetative state thereby allowing free intrusion. This reminds us of one of the
most alarming cases of euthanasia in India, the
case of Aruna Shaunbaug[1].
In this case, the Petitioner was in a permanent vegetative state (PVS) for
37 long years. In the case, the Two-Judge Bench of the Supreme Court allowed
passive euthanasia subject to certain conditions and subject to the approval of
the High Court after following the due procedure as laid down by the Court in
the case.

Approval
by High Court to Withdraw Life Support- Directions in Aruna Shaunbaug case

While laying down the procedure whereby the High Court could grant
approval for withdrawing life support of an incompetent person under Article
226 of the Constitution held that when such application is filed, the Chief
Justice of the High Court should forthwith constitute a Bench of at least two
Judges who should decide to grant approval or not and before doing so, the
Bench should seek the opinion of a Committee of three reputed doctors to be
nominated by the Bench after consulting such medical authorities/medical
practitioners as it may deem fit. Amongst the three doctors, as directed, one
should be a Neurologist, one should be a Psychiatrist and the third a
Physician.

The Court further directed that the committee of three doctors
nominated by the Bench should carefully examine the patient and also consult
the record of the patient as well as take the views of the hospital staff and
submit its report to the High Court Bench. Simultaneously with appointing the
committee of doctors, the High Court Bench shall also issue notice to the State
and close relatives e.g. parents, spouse, brothers/ sisters, etc. of the
patient, and in their absence his/her next friend, and supply a copy of the
report of the doctor‘s committee to them as soon as it is available. After
hearing them, the High Court Bench should give its verdict.

Conclusions made by the Supreme Court in Common Cause case

In this recent case, pursuant to extensively considering the law
pertaining to right to life and right to die alongwith relevant precedents, the
Supreme Court enumerated the following conclusions:

The Constitution Bench in Gian Kaur’s case held that the “right to life”: including right to live with human dignity would mean the existence of such right upto the end of natural life, which also includes the right to a dignified life upto the point of death including a dignified procedure of death. The above right was held to be part of fundamental right enshrined under Article 21 of the Constitution which we also reiterate.

We agree with the observation made in the reference order of the three­Judge Bench to the effect that the Constitution Bench in Gian Kaur’s case did not express any binding view on the subject of euthanasia. We hold that no binding view was expressed by the Bench on the subject of Euthanasia.

The
Constitution Bench, however noted a distinction between cases in
which physician decides not to provide or continue to provide for treatment
and care, which could or might prolong his life and those in which he decides
to administer a lethal drug even though with object of relieving the patient
from pain and suffering. The later was held not to be covered under any right
flowing from Article 21.

To provide
or continue to provide for treatment
and care which could or might prolong his life and those in which he decides to administer lethal
drug even though with the object of relieving the patient from pain and
suffering.The later
was held not to be covered under
any right flowing from Article 21.

Thus, the law of the land as existing today is
that no one is permitted to cause death of another person including a physician
by administering any lethal drug if the objective is to relieve the patient
from pain and suffering.

An adult human being of conscious mind is fully
entitled to refuse medical treatment or to decide not to take medical treatment
and may decide to embrace the death in a natural way.

Euthanasia as the meaning of words suggest is an
act which leads to a good death. Some positive act
is necessary to characterise the action as
Euthanasia.
Euthanasia is also commonly called “assisted suicide” due
to the above reasons.

We are thus of the opinion that the right not
to take a lifesaving treatment by a person, who is competent to take an
informed decision is not covered by the concept of euthanasia as it is commonly
understood but a decision to withdraw lifesaving
treatment by a patient who is competent to take decision as well
as with regard to a patient who is not competent to take decision can be termed
as passive euthanasia, which is lawfully and legally permissible in this
country.

The right
of patient who is incompetent to express
his view cannot be outside of fold of Article 21 of the Constitution of India.

We also
are of the opinion that in cases
of incompetent patients who are unable to take an informed decision, “the
best interests principle” be applied and such decision be taken by specified
competent medical experts and be implemented after providing a cooling period
to enable aggrieved person to approach the Court of Law.

An advance medical directive is an individual’s
advance exercise of his autonomy on the subject of extent of medical
intervention that he wishes to allow upon his own body at a future date, when
he may not be on a position to specify his wishes. The purpose and object of
advance medical directive is to express the choice of a person regarding
medical treatment in an event when he loses capacity to take a decision. The right
to execute an advance medical directive is nothing but a step towards
protection of aforesaid right by an individual.

Right of execution of an advance medical directive
by an individual does not depend on any recognition or legislation by a State
and we are of the considered opinion that such rights can be exercised by an
individual in recognition and in affirmation of his right of bodily integrity
and self-determination.

Other important judgments on Euthanasia

Gian Kaur v. State of Punjab– In this case, Five-Judge Bench of the Supreme Court
overruled the Supreme Court’s holding in the case of Maruti
Shri Pati Dubal v. State of Maharashtra and P. Rathinam v. Union of India &
Anr. In Maruti Shi Pati
Dubal case, the Supreme Court held Section 309 of Indian Penal Code (this
makes attempt to commit suicide a punishable offence in India) as violative of
Articles 14 and 21 of the Constitution of India. In P.
Rathinam case, the Supreme Court held that the “right to die” is a right
enshrined under Article 21 of the Constitution and hence Section 309 of Indian Penal Code was
unconstitutional.

In Gian
Kaur case, the Supreme Court held that both euthanasia and assisted
suicide were not lawfully valid in India.

State of Himachal Pradesh and anr. V. Umed
Ram Sharma- In this case, the Apex Court observed that the right to life embraces not only
physical existence but also the quality of life as understood in its richness
and fullness within the ambit of the Constitution.

About Shilpi Sharan

Shilpi Sharan is the Editor at Vakilno1.com - an Advocate with extensive knowledge in myriad fields of Law. She has a flair of writing and has legal publications in national and international law magazines to her credit. She focuses on legal research and aims at raising public awareness of laws in India.
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